48 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Desierto

G.R. No. 145368. April 12, 2002. *

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his

capacity as Ombudsman, respondent.
Constitutional Law; Ombudsman; Public Officers; The Ombudsman has the power to
investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of
the government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations; Public Officer Defined.In sum, the
Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance
by a public officer or employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations. Neither
the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are.
A definition of public officers cited in jurisprudence is that provided by Mechem, a
recognized authority on the subject: A public office is the right, authority and duty, created
and conferred by law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public. The
individual so invested is a public officer.
Same; Same; Same; The characteristics of a public office include the delegation of
sovereign functions, its creation by law and not by contract, an oath, salary, continuance of
the position, scope of duties, and the designation of the position as an office.The
characteristics of a public office, according to Mechem, include the delegation of sovereign
functions, its creation by law and not by contract, an oath, salary, continuance of the
position, scope of duties, and the designation of the position as an office.
Same; Same; Same; Court holds that the National Centennial Commission (NCC)
performs executive functions.We hold that the NCC performs executive functions. The
executive power is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their due observance.
The executive function, therefore, concerns the implementation of the policies as set forth
by law.

______________

*FIRST DIVISION.
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VOL. 381, APRIL 12, 2002 4
9
Laurel vs. Desierto
Same; Same; Same; The NCC was precisely created to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider participation from the
government and non-government or private organizations and to rationalize the relevance of
historical links with other countries and to carry them into effect.E.O. No. 128,
reconstituting the Committee for the National Centennial Celebrations in 1998, cited the
need to strengthen the said Committee to ensure a more coordinated and synchronized
celebrations of the Philippine Centennial and wider participation from the government and
non-government or private organizations. It also referred to the need to rationalize the
relevance of historical links with other countries. The NCC was precisely created to execute
the foregoing policies and objectives, to carry them into effect.
Same; Same; Same; The promotion of industrialization and full employment is a
fundamental state policy.There can hardly be any dispute that the promotion of
industrialization and full employment is a fundamental state policy.
Same; Same; Same; The NCC performs sovereign functions; It is a public office and
petitioner is a public officer.Clearly, the NCC performs sovereign functions. It is,
therefore, a public office, and petitioner, as its Chair, is a public officer.
Same; Same; Same; Fact that petitioner did not receive any compensation during his
tenure is of little consequence.That petitioner allegedly did not receive any compensation
during his tenure is of little consequence. A salary is a usual but not a necessary criterion
for determining the nature of the position. It is not conclusive. The salary is a mere incident
and forms no part of the office. Where a salary or fees is annexed, the office is provided for
it is a naked or honorary office, and is supposed to be accepted merely for the public good.
Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as
opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or
fees are attached. But it is a public office, nonetheless.

PETITION for review of a decision of the Ombudsman.

The facts are stated in the opinion of the Court.

Laurel Law Offices for petitioner.
The Solicitor General for respondent.
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50 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto

KAPUNAN, J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative Order No.
223 constituting a Committee for the preparation of the National Centennial
Celebration in 1998. The Committee was mandated to take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial
of the Declaration of Philippine Independence and the Inauguration of the Malolos
Congress. 1

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,

reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1998. It renamed the Committee as the National Centennial
Commission. Appointed to chair the reconstituted Commission was Vice-President
Salvador

______________

1 A.O. 223, Section 1. The same section provided for the Committees composition as follows:
x x x. The Committee shall be composed of six (6) representatives from the Presidential Commission for Culture and
the Arts (PCCA), and five (5) representatives from the Philippine Centennial Foundation, Inc. (PCFI). They shall be
appointed by the President upon their nomination by their respective groups.
The Committee members shall elect among themselves the Chairman and Vice-Chairman, and such other officers
as they may deem necessary.
 The Committee was also granted the following duties and powers:

1. 1.To undertake the overall study, formulation and implementation of programs and projects on the utilization
of culture, arts, and media as vehicles for value education in the context of the Centennial Celebration;
2. 2.To act as principal coordinator for all the activities related to awareness and celebration of the centennial;
3. 3.To constitute sub-committees and working groups which shall undertake the implementation of the
program and projects; and
4. 4.To call upon the assistance of any government agency or instrumentality and corporation, and to invite
private individuals and organizations to assist it in the performance of its tasks. (Id., at Section 2.)

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VOL. 381, APRIL 12, 2002 51
Laurel vs. Desierto
H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named
Honorary Chairpersons. 2

Characterized as an ad-hoc body, the existence of the Commission shall

terminate upon the completion of all activities related to the Centennial
Celebrations. Like its predecessor Committee, the Commission was tasked to take
3

charge of the nationwide preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the Inauguration of
the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to prepare, for approval of the President, a Comprehensive Plan for
the Centennial Celebrations within six (6) months from the effectivity of the
Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
SEC. 3. The Commission shall be provided with technical and administrative staff support
by a Secretariat to be composed of, among others, detailed personnel from the Presidential
Management Staff, the National Commission for Culture and the Arts, and the National
Historical Institute. Said Secretariat shall be headed by a full time Executive Director who
shall be designated by the President.
SEC. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.

______________

2 Other members of the Commission were the Secretaries of Education, Culture and Sports, National

Defense, Interior and Local Government, Tourism, Trade and Industry, Public Works and Highways,
Transportation and Communications, and Budget and Management, the Press Secretary, two (2)
representatives each from the Senate and the House of Representatives, two (2) representatives from the
Judiciary, the Executive Director of the National Historical Institute, three (3) representatives from the
National Commission for Culture and Arts, three (3) representatives from the Philippine Centennial
Foundation, Inc., and other members from the government and the private sectors, as may be designated
later. (E.O. No. 128, Section 1.)
3 Id., at Section 5.

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52 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation
(Expocorp) was created. Petitioner was
4

______________

4 The purposes of the corporation were set forth in Article 2 of the Articles of Incorporation, thus:

PRIMARY PURPOSE

To set up and establish the Philippine Centennial International Exposition 1998 (EXPO 98), a project of the National
Centennial Commission envisioned and mandated under Executive Order No. 128, series of 1993, in the Clark Special
Economic Zone (CSEZ) within the Provinces of Pampanga and Tarlac, Philippines as created, defined and delineated
under Proclamation No. 163, series 1993, of the President of the Philippines and furtherance of said purpose;

1. 1.To operate, administer, manage, implement, and develop EXPO 98 conformably to and in accordance with
the Detailed Feasibility study and Master Plan for said Exposition prepared by DOUGLAS/GALLAGHER,
INC. and approved by the President of the Philippines;
2. 2.To exercise oversight functions and overall jurisdiction over the operations of EXPO 98 as well as manage
and oversee all plans, programs, and activities related to the implementation and operation of said
Exposition;
3. 3.To regulate the establishment, operation, and maintenance of utilities, services, and infrastructure works
in all the site components of EXPO 98 and its support facilities;
4. 4.To oversee the preparations for the implementation of the participation of countries, groups, organizations,
and entities at EXPO 98;
5. 5.To establish linkages with participating countries and coordinate their programs and activities relevant to
the theme of EXPO 98;
6. 6.To provide and prescribe the guidelines for the design and fabrication of the pavilions of participating
countries that played a significant role in Philippine historical development and of other participating
groups, organizations, and entities which would be reflective of the following objectives of EXPO 98

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VOL. 381, APRIL 12, 2002 53
Laurel vs. Desierto
among the nine (9) Expocorp incorporators, who were also its first nine (9) directors.
Petitioner was elected Expocorp Chief Executive Officer.

______________

1. a)showcase the national vision of the Philippines, highlighted by a rich history and culture, and its
traditional heritage and diverse cultural influences;
2. b)express eloquently the Filipinism sentiment of the Philippine Centennial;
3. c)strengthen cultural and historical linkages between Philippines and participating countries;
4. d)create an image of the Philippines as a country with rich trade and tourism potentials; and
5. e)project the Filipino character and strengthen the sense of national pride and patriotism among the Filipino
people.

1. 7.To conceive and devise varied promotional strategies towards creating awareness and appreciation of EXPO
98 as the centerpiece of the national celebrations in 1998 of the centennial of the declaration of Philippine
Independence and beyond that as a permanent site for the Filipino people to honor their rich heritage;
2. 8.To encourage and invite the active and meaningful participation of the private sector in managing and
overseeing EXPO 98; and
3. 9.To forge strategic partnerships and joint ventures with local and international investors and developers in
the development, maintenance, operation, and management of EXPO 98 on a turn-key basis.

SECONDARY PURPOSES
 1. (1)To purchase, acquire, own, lease, sell and convey real properties such as lands, buildings, factories and
warehouses and machineries, equipment and other personal properties as may be necessary or incidental to
the conduct of the corporate business, and to pay in cash, shares of its capital stock, debentures and other
evidences of indebtedness, or other securities, as may be deemed expedient, for any business or property
acquired by the corporation.
2. (2)To borrow or raise money necessary to meet the financial requirements of its business by the issuance of
bonds, promissory

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54 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech
in the Senate denouncing alleged anomalies in

______________

1. notes and other evidences of indebtedness, and to secure the repayment thereof by mortgage,
pledge, deed of trust or lien upon the properties of the corporation or to issue pursuant to law
shares of its capital stock, debentures and other evidences of indebtedness in payment for
properties acquired by the corporation or for money borrowed in the prosecution of its lawful
business;
2. (3)To invest and deal with the money and properties of the corporation in such manner as may
from time to time be considered wise or expedient for the advancement of its interests and to
sell, dispose of or transfer the business, properties and goodwill of the corporation or any part
thereof for such consideration and under such terms as it shall see fit to accept;
3. (4)To aid in any manner any corporation, association, or trust estate, domestic or foreign, or any
firm or individual, any shares of stock in which or any bonds, debentures, notes, securities,
evidences of indebtedness, contracts, or obligations of which are held by or for this corporation,
directly or indirectly or through other corporations or otherwise;
4. (5)To enter into any lawful arrangement for sharing profits, union of interest, unitization or
farmout agreement, reciprocal concession, or cooperation, with any corporation, association,
partnership, syndicate, entity, person or governmental, municipal or public authority, domestic
or foreign, in the carrying on of any business or transaction deemed necessary, convenient or
incidental to carrying out any of the purposes of this corporation;
5. (6)To acquire or obtain from any government or authority, national, provincial, municipal or
otherwise, or a corporation, company or partnership or person, such charter, contracts,
franchise, privileges, exemption, licenses and concessions as may be conducive to any of the
objects of the corporation;
6. (7)To establish and operate one or more branch offices of agencies and to carry on any or all of its
operations and business without any restrictions as to place or amount including the right to
hold, purchase or otherwise acquire, lease, mortgage, pledge and convey or otherwise deal in
with real and personal property anywhere within the Philippines;
7. (8)To conduct and transact any and all lawful business, and to do or cause to be done any one or
more of the acts and things

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Laurel vs. Desierto
the construction and operation of the Centennial Exposition Project at the Clark
Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Cosetengs privilege speech was referred to the Committee on Accountability of
Public Officers and Investigation (The Blue Ribbon Committee) and several other
Senate Committees for investigation.
 On February 24, 1999, President Joseph Estrada issued Administrative Order
No. 35, creating an ad hoc and independent citizens committee to investigate all the
facts and circumstances surrounding the Philippine centennial projects, including
its component activities. Former Senator Rene A.V. Saguisag was appointed to
chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary
of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among
the Committees recommendations was the prosecution by the Ombudsman/DOJ of
Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on
public bidding, relative to the award of centennial contracts to AK (Asia
Construction & Development Corp.); for exhibiting manifest bias in the issuance of
the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the
absence of a valid contract that has caused material injury to government and for
participating in the scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in violation . . . of the
anti-graft law. 5

Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended the further investigation by the Ombudsman, and indictment, in
proper cases of, among others, NCC Chair Salvador H. Laurel for violations of
Section 3(e) of R.A. No.

______________

herein set forth as its purposes, within or without the Philippines, and in any and all foreign countries,
and to do everything necessary, desirable or incidental to the accomplishment of the purposes or the
exercise of any one or more of the powers herein enumerated, or which shall at any time appear conducive
to or expedient for the protection or benefit of this corporation.
5 Rollo, p. 10.

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56 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the
Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of the
Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:

1. 1.That a formal complaint be filed and preliminary investigation be conducted before

the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel,
former EXPOCORP President Teodoro Q. Pea and AK President Edgardo H.
Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to
PD 1594 and COA Rules and Regulations;
2. 2.That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant. 6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-
affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000
Order but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau
issued a resolution finding probable cause to indict respondents SALVADOR H.
LAUREL and TEODORO Q. PEA before the Sandiganbayan for conspiring to
violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594.
The

______________

6Id., at 134-135.
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VOL. 381, APRIL 12, 2002 57
Laurel vs. Desierto
resolution also directed that an information for violation of the said law be filed
against Laurel and Pea. Ombudsman Aniano A. Desierto approved the resolution
with respect to Laurel but dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any information
before the Sandiganbayan or any court against petitioner for alleged violation of
Section 3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not
a public officer because:

A.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH

UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY
COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR
CONTROLLED CORPORATION.

B.

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.

C.
 PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT
A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT
PRACTICES ACT. 7

In addition, petitioner in his reply invokes this Courts decision in Uy vs.

8

Sandiganbayan, where it was held that the jurisdiction of the Ombudsman was
9

limited to cases cognizable by the Sandi-

______________

7 Id., at 15.
8 Id., at 296-297.
9 312 SCRA 77 (1999).

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58 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
ganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position
was purportedly not classified as Grade 27 or higher, the Sandiganbayan and,
consequently, the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we held
that it is the prosecutor, not the Ombudsman, who has the authority to file the
corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have control
over prosecution of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling
within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act
Providing for the Functional and Structural Organization of the Office of the Ombudsman,
and for other purposes) which vests upon the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan... And this is further buttressed by Section 11 (4a) of
R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power
to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of
the Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly
serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable by
the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing
pronouncement in its Resolution dated March 20, 2001. The Court explained the
rationale for this reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when such
act or omission appears to be illegal, unjust, improper or inefficient. The law does not make
a distinction between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause any illegal act or omission
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Laurel vs. Desierto
of any public official is broad enough to embrace any crime committed by a public officer or
employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly
in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable
by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the
Ombudsman to take over, at any stage, from any investigatory agency of the government,
the investigation of such cases. The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers and employees by other
courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by
the Sandiganbayan is not incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and employees. Indeed, it must be
stressed that the powers granted by the legislature to the Ombudsman are very broad and
encompass all kinds of malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with
the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of
the Special Prosecutor is merely a component of the Office of the Ombudsman and may only
act under the supervision and control and upon authority of the Ombudsman. Its power to
conduct preliminary investigation and to prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints against officers and employees of
the government and to enforce their administrative, civil and criminal liability in every
case where the evidence warrants. To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special Prosecutor to
prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c)
of RA 6770.
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60 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
The prosecution of offenses committed by public officers and employees is one of the most
important functions of the Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a more active and effective agent of
the people in ensuring accountability in public office. A review of the development of our
Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the
NCC, was not a public officer.
 The Constitution describes the Ombudsman and his Deputies as protectors of
10

the people, who shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations.
Among the awesome powers, functions, and duties vested by the Constitution upon 11

the Office of the Ombudsman is to [i]nvestigate... any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
The foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of
said law respectively provide:
SEC. 13. Mandate.The Ombudsman and his Deputies, as protectors of the people shall
act promptly on complaints file in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.
SEC. 15. Powers, Functions and Duties.The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal unjust, improper or inefficient? It has primary jurisdiction over cases
cognizable by the

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10 ART. XI, SEC. 12.

11 ART. XI, SEC. 13 (1).
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VOL. 381, APRIL 12, 2002 61
Laurel vs. Desierto
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any
stage, from any investigatory agency of Government, the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC. 16. Applicability.The provisions of this Act shall apply to all kinds of malfeasance,
misfeasance and non-feasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the government, or
of any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations. 12

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence is that13

provided by Mechem, a recognized authority on the subject:

A public office is the right, authority and duty, created and conferred by law, by which, for a
given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion

______________

12 Section 22 extends these investigatory powers, under certain conditions, to private persons:
SEC. 22. Investigatory Power.The Office of the Ombudsman shall have the power to investigate any serious misconduct in
office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for
impeachment or over Members of Congress, and the Judiciary.
In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his
Deputies shall have jurisdiction to include such private person as the evidence may warrant. The officer or employee and the
private person shall be tried jointly and shall be subject to the same penalties and liabilities.
13 E.g., Fernandez vs. Ledesma, 1 SCRA 620 (1963); Aparri vs. Court of Appeals, 127 SCRA 231 (1984).
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62 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
of the sovereign functions of the government, to be exercised by him for the benefit of the
public. The individual so invested is a public officer. 14

The characteristics of a public office, according to Mechem, include the delegation of

sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as
an office. 15

Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary,
since he purportedly did not receive any compensation; and (3) continuance, the
tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as [t]he most important characteristic in determining
whether a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or
contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him for the
benefit of the public;that some portion of the sovereignty of the country, either legislative,
executive or judicial, attaches, for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is not a public officer. 16

Did E.O. 128 delegate the NCC with some of the sovereign functions of government?
Certainly, the law did not delegate upon the NCC functions that can be described as
legislative or judicial. May the functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power is
generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practi-

______________

14 F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS, 1.

15 Id., at 4-10. See also 63C Am Jur 2d, Public Officers and Employees 1.
16 Id., at 4.

63
VOL. 381, APRIL 12, 2002 63
 Laurel vs. Desierto
cal operation and enforcing their due observance. The executive function,
17

therefore, concerns the implementation of the policies as set forth by law.

The Constitution provides in Article XIV (Education, Science and Technology,
Arts, Culture, and Sports) thereof:
SEC. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve,
promote, and popularize the nations historical and cultural heritage and resources, as well
as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
WHEREAS, the birth of the Republic of the Philippines is to be celebrated in 1998, and the
centennial presents an important vehicle for fostering nationhood and a strong sense of
Filipino identity;
WHEREAS, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;
WHEREAS, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;
WHEREAS, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is necessary
for long-range planning and continuous developmental programming;
WHEREAS, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural, and
business sectors to serve as effective instruments from the launching and overseeing of this
long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the need to strengthen the said Committee to ensure a
more coordinated and synchronized celebrations of the Philippine Centennial and
wider participation from the government and non-government or private organiza-

______________

Ople vs. Torres, 293 SCRA 141 (1998).

17

64
64 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
tions. It also referred to the need to rationalize the relevance of historical links
with other countries.
The NCC was precisely created to execute the foregoing policies and objectives, to
carry them into effect. Thus, the Commission was vested with the following
functions:

1. (a)To undertake the overall study, conceptualization, formulation

and implementation of programs and projects on the utilization of culture, arts,
literature and media as vehicles for history, economic endeavors, and reinvigorating
the spirit of national unity and sense of accomplishment in every Filipino in the
context of the Centennial Celebrations. In this regard, it shall include a Philippine
 National Exposition 98 within Metro Manila, the original eight provinces, and
Clark Air Base as its major venues;
2. (b)To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
3. (c)To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
4. (d)To constitute working groups which shall undertake the implementation of the
programs and projects;
5. (e)To prioritize the refurbishment of historical sites and structures nationwide. In
this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements) to ensure the
preservation and maintenance of the historical sites and structures;
6. (f)To call upon any government agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it in the performance of its
tasks; and,
7. (g)Submit regular reports to the President on the plans, programs, projects,
activities as well as the status of the preparations for the Celebration.
18

It bears noting the President, upon whom the executive power is vested, created 19

the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:

______________

Id., at Sec. 2.
18

CONSTITUTION, ARTICLE VII, SECTION 1.

19

65
VOL. 381, APRIL 12, 2002 65
Laurel vs. Desierto
SEC. 2. Executive Orders.Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Italics ours.]
Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much in
the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former
President Ramos, dont you agree that the task
of the centennial commission was also to focus
on the long term over all socio economic
development of the zone and Central Luzon by
attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H.
LAUREL:
I am glad Your Honor touched on that because
that is something I wanted to touch on by lack
 of material time I could not but that is a very
important point. When I was made Chairman I
wanted the Expo to be in Batangas because I
am a Batangeo but President Ramos said Mr.
Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic
recovery in that area by putting this Expo in
Clark Field and so it was done I agreed and
Your Honor if I may also mention we wanted
to generate employment aside from attracting
business investments and employment. And the
Estrada administration decided to junk this
project there 48, 40 thousand people who lost
job, they were employed in Expo. And our
target was to provide 75 thousand jobs. It
would have really calibrated, accelerated the
development of Central Luzon. Now, I think
they are going back to that because they had
the airport and there are plan to revive the
Expo site into key park which was the original
plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy. 20

______________

20 Article XII (National Economy and Patrimony) of the Constitution provides:

Section 1. x x x.
66
66 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla that the holding 21

by a municipality of a town fiesta is a proprietary rather than a governmental

function. Petitioner argues that the holding of a nationwide celebration which
marked the nations 100th birthday may be likened to a national fiestawhich
involved only the exercise of the national governments proprietary
function. In Torio, we held:
22

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply
gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon
it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious
or historical event of the town is in essence an act for the special benefit of the
community and not for the general welfare of the public performed in pursuance of a policy
of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain
but merely to provide entertainment to the town inhabitants is not a conclusive test. For
instance, the maintenance of parks is not a source of income for the town, nonetheless it is
[a] private undertaking as distinguished from the maintenance of public schools, jails, and
the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true
nature of an undertaking or function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government in
essence, otherwise, the function becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in the celebration of a town fiesta.

______________

The State shall promote industrialization and full employment based on sound agricultural development and agrarian
reform, through industries that make full and efficient use of human and natural resources, and which are competitive
in both domestic and foreign markets. x x x.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. x x x.
85 SCRA 599 (1978).
21

Rollo, p. 466.
22

67
VOL. 381, APRIL 12, 2002 67
Laurel vs. Desierto
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be
decisive. Thus, in footnote 15 of Torio, the Court, citing an American case,
illustrated how the surrounding circumstances plus the political, social, and
cultural backgrounds could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances plus the
political, social, and cultural backgrounds may have a decisive bearing on this question.
The case of Pope v. City of New Haven, et al. was an action to recover damages for personal
injuries caused during a Fourth of July fireworks display resulting in the death of a
bystander alleged to have been caused by defendants negligence. The defendants demurred
to the complaint invoking the defense that the city was engaged in the performance of a
public governmental duty from which it received no pecuniary benefit and for negligence in
the performance of which no statutory liability is imposed. This demurrer was sustained by
the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to
allege that the celebration was for the corporate advantage of the city. This was denied. In
affirming the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of purely
public governmental duties, unless made liable by statute. . . .
A municipality corporation, which under permissive authority of its charter or of statute,
conducted a public Fourth of July celebration, including a display of fireworks, and sent up
a bomb intended to explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance of a governmental
duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
 July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the different
departments of the government recognize, and have recognized since the government was
estab-
68
68 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
lished, July 4th as a national holiday. Throughout the country it has been recognized and
celebrated as such. These celebrations, calculated to entertain and instruct the people
generally and to arouse and stimulate patriotic sentiments and love of country, frequently
take the form of literary exercises consisting of patriotic speeches and the reading of the
Constitution, accompanied by a musical program including patriotic air sometimes
preceded by the firing of cannon and followed by fireworks. That such celebrations are of
advantage to the general public and their promotion a proper subject of legislation can
hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the
liberation of our people from oppression by a foreign power. 1998 marked 100 years
of independence and sovereignty as one united nation. The Celebrations was an
occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put
it, it was a vehicle for fostering nationhood and a strong sense of Filipino identity,
an opportunity to showcase Filipino heritage and thereby strengthen Filipino
values. The significance of the Celebrations could not have been lost on petitioner,
who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle
the love for freedom, love for country, that is the over-all goal that has to make everybody
feel proud that he is a Filipino, proud of our history, proud of what our forefather did in
their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining
the nature of the position. It is not conclusive. The salary is a mere incident and
forms no part of the office. Where a salary or fees is annexed, the office is provided
for it is a naked or honorary office, and is supposed to be accepted merely for the
public good. Hence, the office of petitioner as NCC
23

______________

Id., at 7, 15. See also Triste vs. Leyte State College Board of Trustees, 192 SCRA 326 (1990).
23

69
VOL. 381, APRIL 12, 2002 69
Laurel vs. Desierto
Chair may be characterized as an honorary office, as opposed to a lucrative office or
an office of profit, i.e., one to which salary, compensation or fees are attached. But 24

it is a public office, nonetheless.

Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-
hocbody make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an office.
But, says Chief Justice Marshall, if a duty be a continuing one, which is defined by rules
prescribed by the government and not by contract, which an individual is appointed by
government to perform, who enters on the duties pertaining to his station without any
contract defining them, if those duties continue though the person be changed,it seems
very difficult to distinguish such a charge or employment from an office of the person who
performs the duties from an officer.
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no difference, says
PEARSON, C.J., whether there be but one act or a series of acts to be done,whether the
office expires as soon as the one act is done, or is to be held for years or during good
behavior. 25

Our conclusion that petitioner is a public officer finds support in In Re

Corliss. There the Supreme Court of Rhode Island ruled that the office of
26

Commissioner of the United States Centennial Commission is an office of trust as

to disqualify its holder as elector of the United States President and Vice-President.
(Under Article II of the United States Constitution, a person holding an office of
trust or profit under the United States is disqualified from being appointed an
elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an office
of trust under the United States, and that he

______________

24 Id., at 13.
25 Id., at 8. Emphasis supplied.
26 23 Am Rep. 538 (1876).

70
70 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
is therefore disqualified for the office of elector of President and Vice-President of the
United States.
The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign arts,
products, and manufactures, under the auspices of the government of the United States,
and for the constitution of a commission, to consist of more than one delegate from each
State and from each Territory of the United States, whose functions shall continue until
close of the exhibition, and whose duty it shall be to prepare and superintend the
execution of the plan for holding the exhibition. Under the statute the commissioners are
appointed by the President of the United States, on the nomination of the governor of the
States and Territories respectively. Various duties were imposed upon the commission, and
under the statute provision was to be made for it to have exclusive control of the exhibit
before the President should announce, by proclamation, the date and place of opening and
holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and
functions of the commission were further increased and defined. That act created a
corporation, called The Centennial Board of Finance, to cooperate with the commission
and to raise and disburse the funds. It was to be organized under the direction of the
commission. The seventh section of the act provides that the grounds for exhibition shall
be prepared and the buildings erected by the corporation, in accordance with plans which
shall have been adopted by the United States Centennial Commission; and the rules and
regulations of said corporation, governing rates for entrance and admission fees, or
otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public,
shall be fixed and established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said grounds or buildings,
or relating to said exhibition or celebration, shall be made without the consent of the
United States Centennial Commission, and said commission shall have power to control,
change, or revoke all such grants, and shall appoint all judges and examiners and award all
premiums. The tenth section of the act provides that it shall be the duty of the United
States Centennial Commission to supervise the closing up of the affairs of said corporation,
to audit its accounts, and submit in a report to the President of the United States the
financial results of the centennial exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they were not
merely subordinate and provisional, but in the highest degree authoritative, discretion-
71
VOL. 381, APRIL 12, 2002 71
Laurel vs. Desierto
ary, and final in their character. We think that persons performing such duties and
exercising such functions, in pursuance of statutory direction and authority, are not to be
regarded as mere employees, agents, or committee men, but that they are, properly
speaking, officers, and that the places which they hold are offices. It appears, moreover,
that they were originally regarded as officers by Congress; for the act under which they
were appointed declares, section 7, that no compensation for services shall be paid to the
commissioners or other officers, provided for in this act, from the treasury of the United
States. The only other officers provided for were the alternates appointed to serve as
commissioners when the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation. Even assuming that Expocorp is a
private corporation, petitioners position as Chief Executive Officer (CEO) of
Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or
omissions as CEO of Expocorp must be viewed in the light of his powers and
functions as NCC Chair. 27

Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public officer as
defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
therefore, beyond the jurisdiction of the Ombudsman.
 Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:
SEC. 3. Corrupt practices of public officers.In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees of
offices

______________

27 See Yasay vs. Desierto, 300 SCRA 494 (1998).

72
72 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Desierto
or government corporations charged with the grant of licenses or permits or other
concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms.As used in this Act, the term
xxx
(b) Public officer includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government as defined in the preceding paragraph.
[Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a public officer is
expressly limited to the application of R.A. No. 3019. Said definition does not apply
for purposes of determining the Ombudsmans jurisdiction, as defined by the
Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-
Graft and Corrupt Practices Act involves the appreciation of evidence and
interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the
definition is not restrictive. The Anti-Graft and Corrupt Practices Act is just one of
28

several laws that define public officers. Article 203 of the Revised Penal Code, for
example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by
competent authority, takes part in the performance of public functions in the Government
of Philippines, or performs in said Government or in any of its branches public duties as an
employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987, on 29

the other hand, states:

______________
 Preclaro vs. Sandiganbayan, 247 SCRA 454 (1995).
28

Executive Order No. 292.

29

73
VOL. 381, APRIL 12, 2002 73
Laurel vs. Desierto
Officeras distinguished from clerk or employee, refers to a person whose duties not
being of a clerical or manual nature, involves the exercise of discretion in the performance
of the functions of the government. When used with reference to a person having authority
to do a particular act or perform a particular person in the exercise of governmental power,
officer includes any government employee, agent or body having authority to do the act or
exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may be
considered a public official whether or not one receives compensation, thus:
Public Officials include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
compensation, which is not defined by said law, has many meanings.
Under particular circumstances, compensation has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and wages.
30

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to
be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received any
allowance, fee, honorarium, or some other form of compensation. Notably, under the
by-laws of Expocorp, the CEO is entitled to per diems and compensation. Would 31

such fact bear any significance?

______________

15 C.J.S. Compensation, p. 654.

30

Rollo, p. 470.
31

74
74 SUPREME COURT REPORTS ANNOTATED
Tan vs. People
Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in
the Courts Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
Puno and Ynares-Santiago, JJ., concur.
Davide, Jr. (C.J., Chairman), No part due to close relations with a party.
 Petition dismissed, preliminary injunction lifted.
Note.Public officer under Section 2 (b) of Republic Act No. 3019 includes
elective or appointive officials and employees, permanent or temporary, whether in
the Career Service and Non-Career Service. (Preclaro vs. Sandiganbayan, 247
SCRA 454 [1995])

o0o

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